In a vast majority of DUI cases, a driver is stopped by a police officer after allegedly committing a traffic violation. The question of whether the driver was actually driving is not in dispute. However, there are certain instances in a DUI case where a police officer does not personally see an individual driving. For example, an individual can be:
- Asleep in the vehicle
- Sitting in the driver’s seat
- Have the keys in the ignition
- Present when the vehicle is running
In those situations, the question is whether an individual can be charged and convicted if the police officer did not see the individual driving. The short answer is yes.
In West Virginia, the DUI statute does not require that a police officer actually see of observe a person move, drive, or operate a motor vehicle while the officer is physically present, so long as the surrounding circumstances indicate that the vehicle could not otherwise be located where it is unless it was driven there by that person.
The outcome of these cases depends on the specific facts and circumstances. Generally, it would be reasonable to assume that an individual was driving if he or she was found alone in the driver’s seat of a running vehicle in a vacant parking lot several miles from the nearest house. However, it may not be reasonable to assume a person was driving if they are seated in a vehicle directly outside of their house and there is no other evidence to suggest that the vehicle had recently been moved.